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Petitioner: SARDAR MUHAMMAD and 21 others VS Respondent: FAQIR MUHAMMAD and 4 others
Court Name: Lahore High Court Judge(s): Mian Allah Nawaz Title: SARDAR MUHAMMAD and 21 others vs FAQIR MUHAMMAD and 4 others Case No.: Civil Revision No, 517-D of 1989/BWP Date of Judgment:1995-09-27 Reported As: 1996 CLC 916 Result: Revision accepted
JUDGMENT
JUDGMENT ' This Revision petition, under section 115 of Civil Procedure Code by Sardar Muhammad and 21 others, is directed against the judgment and decree dated 18-10-1989 whereby learned Additional District Judge, Bahawalnagar dismissed petitioners' appeal, allowed cross-objection filed by Faqir Muhammad and 7 others/respondents and so upheld the decision of Civil Judge, Ist Class, Chishtian dated 25-2-1989 (although on different ground that is res judicata)/dismissing the petitioner's suit. 2. In order to appreciate the contentions of the parties, it is necessary to set out the facts, leading to litigation, in detail. These are: That Nabi Bakhsh, the original right-holder, was owner of agricultural land situated in various Revenue estates in East Punjab. In the wake of partition, he came to Pakistan and submitted five claims for land so abandoned by him in different villages of India. The claims bearing Nos.109722, 109723, 109728, 109729, 109727 were verified on different dates falling between 23-3-1952 and 14-1-1957. The total verification of these claims was calculated to be 4,322.364 produce index units. The aforestated Nabi Bakhsh died in the year 1957 leaving behind Abdul Aziz (son) and petitioners Nos.1 to 6, who were the sons of his predeceased son Rehmatullah. Abdul Aziz/respondent No,1 and Muhammad Ali made a report of his death to concerned Patwari on 12-2-1957. On 13-2-1957, the Revenue Officer-cum-Settlement Officer sanctioned mutation in favour of Abdul Aziz and the legal heirs of Rehmatullah in equal shares within the terms of para. 46 of Rehabilitation Settlement Scheme/hereinafter referred to as the Scheme. Although petitioners Nos.1 to 6 had relied upon a registered deed of Will made by Nabi Bakhsh dated 23-12-1953, yet the Revenue Officer failed to take its notice and attested the mutation under para. 46 of the Scheme. On 11-3-1957, vide RL-II No,2, suit land equivalent to 1500.12 units was proposed by the Settlement
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Authorities in favour of Abdul Aziz and petitioners. The same was confirmed on 1-5-1957. Muhammad Ali, herein petitioner No,5 paid the rehabilitation fee on 10-8-1958 to the extent of 1/2 of land allotted to Nabi Bakhsh. After the lapse of about 7-1/2 years, Abdul Aziz/respondent No,1, filed revision petition against Mutation No,65 dated 30-4-1965, which was dismissed by Settlement Commissioner, Bahawalpur vide order dated 3-9-1965. Against this order Abdul Aziz filed Constitution Petition No,806/66 which was allowed by learned Single Judge of the High Court vide order dated 26-9-1975, holding that as Nabi Baldish had died before seeking satisfaction of his claim; that his claim was to devolve upon his legal heirs under Para.46 of the Scheme without any deviation. Against this decision petitioners preferred appeal which was dismissed by the Supreme Court on 6-10-1987. It will be worthwhile to note para.7 of the decision of the Supreme Court which is as follows: "7. Once it is established that the instructions dated 14-4-1954 have statutory force, and there is no reason to hold to the contrary, there can be no doubt about its applicability to the case in hand. It clarifies that the instructions contained in paras. 46, 46-A and 67 of the Scheme should be applied only to the cases of inheritance of such refugee right-holders as had died either in India or Pakistan before they could file their claim forms for allotment of land under the Scheme. The case of Nabi Bakhsh was one of death after his claim was filed and duly verified. The instructions further provided that when once a claiment had filed his claim and died thereafter before securing any actual allotment, the normal rule of succession laid down by the Shariat Law should be applied in its entirety without any deviation. As Nabi Bakhsh had died after filing and verification of his claim, Shariat Law without any deviation was to be applied to him. The deviations provided for in paras. 46 and 46-A of the Scheme namely, the inheritance of the sons of predeceased son or daughter would not, therefore, apply. Till the confirmation of land and the payment of Rehabilitation fee, the Rehabilitation Authorities would be competent to sanction mutations of inheritance but in applying the law, they will follow Shariat Law without deviation where death took place after filing the claim form, Band in other cases of death taking place before filing the claim, Shariat Law with the deviations indicated in paras. 46 and 46-A shall be applied." 3. Feeling still dissatisfied, petitioners sued for seeking declaration to the effect that Nabi Bakhsh had executed a registered deed of Will on 24-8-1953 (Exh. P/1) by which he had bequeathed 1/2 of the agricultural land allotted to him in Pakistan in favour of the legal heirs of his predeceased son Rehmatullah,; that the petitioners irrespective of the decision of the Supreme Court, were entitled to receive 1/3rd of the suit land measuring 483-Kanals 14-Marlas (fully described in the plaint); that Mutation No,437 and subsequent mutations attested on the basis of the above mutation, were null and void. The suit was resisted. It is necessary to mention over here that Muhammad Ali, who is the son of Rehmatullah, was impleaded as defendant on the ground that he was living in Province of Siridh and so was not joined as plaintiff. Respondents Nos.7 to 7 (viii) are vendees from. Abdul Aziz. Respondents Nos.1 to 6, in their written statement, contended that the matters raised in the suit were directly and substantially in issue between the same parties in Writ Petition No,806/66 which was allowed by the learned Single Judge of the High Court vide order dated 26-9-1975,; that the appeal filed by the petitioner was dismissed by the Supreme Court vide decision dated 6-10-1987 (Exh. P8). In view of above, according to respondents Nos.1 to 6, the suit of the petitioners was barred by the principle of res judicata; that the registered Will dated 24-8-1953 was a forged instrument and was of no lawful effects. 4. On the divergent pleadings of the parties, as many as 14 issues were framed which are not necessary to be recapitulated as learned counsel for the parties focussed their energies on assailing the proprietary of findings of two Courts below on Issues Nos.2 and 5. These are as follows: "2. Whether the suit is barred by principle of res judicata? OPD 1 to 6. 5. Whether the impugned Will is against law and Shariat ? OPD 1 to 6."
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' In order to prove their respective pleas, the petitioners examined four witnesses in addition to Muhammad Shafi, who entered into witness as P.W.S. P.W.1 Abdul Majeed proved the signatures of his father Abdul Aziz deceased, who had scribed the document. Zulfiqar Ahmed, P.W.2 proved the signatures of his father Shah Muhammad, who had signed the questioned document as a marginal witness. Muhammad Shafi also proved the disputed document as a marginal witness. P.W.4 Muhammad Munir proved the signatures of his father Ch. Noor Muhammad/Lambardar, who had identified the parties. Before the Registrar. Muhammad Shafi, one of the plaintiffs, as P.W.5 supported and proved the plaint. The petitioners also tendered into evidence following documents:-- "(1) Original deed of Will registered (Exh. P.1) on 29-8-1953. (2) Mutation No,2. (Exh. P.2). (3) Copy of Mutation No,437. (4) Copy of Mutation No,326 (Exh. P.4). (5) Copy of Jamabandi for 1985-86 (Exh. P.6). (6) Copy of Jamabandi for 1981-82, (Exh. P.7). (7) Copy of judgment of Supreme Court (Exh. P.8) of Pakistan. (8) Copy of Jamabandi (Exh. P.9). (9) Copy of Khasra Girdawari for 1986-87 (Exh. P.10). (10) Copy of Mutation No,216 (Exh. P.5). ' Respondents relied upon two witnesses namely D.W.1 Fateh Muhammad and D.W.2 Muhammad Rashid. Muhammad Rashid, while deposing on oath before the Court, did not utter a single word/challenging the execution of questioned document/Will (Exh. P/1). He stressed that the aforestated document was produced by the sons of Rehmatullah before Revenue Officer but without any effect; that they had produced this document before High Court as well as Supreme Court but these Courts did reject that document. The respondents tendered into evidence following documents: (1) Copy of Mutation No,208. (2) Khasra Girdawris for years 1974 to 1988. (3) Jamabandi for year 1985-86. 5. Upon the consideration of evidence, so adduced by the parties, the learned Court of first instance found that the suit, filed by the petitioners, was based upon registered deed of Will dated 24-8-1953; that claim based upon that document was neither raised in the Constitution petition nor was dealt with by the learned Single Judge of the High Court and so this suit filed by petitioners was not hit by the principle of res judicata. On the question of execution of questioned document, the learned first Court came to the conclusion that Will related to property/agricultural land abandoned by Nabi Bakhsh in India and so it was wholly null and void and could not be enforced in Pakistan. On this finding, the learned Trial Judge dismissed the suit. Feeling. Aggrieved the petitioners preferred appeal. Respondents also filed a cross-objection with regard to finding of the first Court on the issue of res judicata. The learned Appellate Court did not agree with the conclusions of the Court below on the question of res judicata and held that the suit was hit by decision of High Court in Writ Petition No,806/66 and by Supreme Court in Appeal No,157/81 and so the suit was barred by the principle of res judicata. On this conclusion, the learned Court of appeal accepted the cross-objection. Filed by respondents and dismissed the appeal vide a consolidated decision dated 18-1-1989. This is how this revision petition has come to this Court. 6. This Revision petition was fiercely and vehemently argued by both sides. The points raised by the learned counsel for the petitioners can be conveniently summerised as below: ' Firstly; that Mutation No,2 (Exh.P.2) dated 23-12-1957 was sanctioned by the Revenue Authorities with reference to Memo. No,4953/54/3917/R(L) issued on 14-4-1954 whereby the concession was
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given to the heirs of predeceased sons of the right-holder; that Abdul Aziz has challenged that basis of mutation before the High Court by saying that the inheritance of Nabi Bakhsh was to be governed by para. 46 without any deviational concession to heirs of predeceased sons of the right-holder under aforenoted memorandum; that the aforesaid writ petition was allowed and it was held that the memorandum dated 14-4-1954 was not applicable to the inheritance of Nabi Bakhsh and so the mutation was set aside; that on appeal this was the sole issue before the Supreme Court and the decision of the High Court was affirmed. The claim of the petitioners, on the basis of Will, was neither examined by the Revenue Authorities, nor by the High Court nor by the Supreme Court and so this claim was not a matter directly and substantially in issue in the proceedings before the High Court as well as before the Supreme Court. On this reasoning it was strenuously urged that the suit filed by the petitioners on the basis of registered Will, was not barred by the principle of res judicata. ' Secondly; that the principle of constructive res judicata was not at all attracted to the facts and circumstances of this case; ' Thirdly; that the petitioner had proved the execution of Will by overwhelming evidence. P.W.1, P.W.2, P.W.3 and P.W.4, proved the writing of Nabi Bakhsh on the questioned document. The aforesaid witness was subjected to cross-examination but nothing was extracted to demolish their testimony. Muhammad Shafi/one of the plaintiffs, entered the witness-box and proved the Will. None of the respondents dared to cross-examine him on the question of the execution of questioned Will. Against the above evidence, the respondents examined two witnesses D.W.1 Fateh Muhammad and Muhammad Rashid one of the respondents/defendants as D.Ws. Muhammad Rashid, while appearing as a witness, did not say a single word with respect to the genuineness of the questioned document. He laid much stress upon the circumstances that the Will was produced by the legal heirs of Rehmtullah before the Revenue Officer, before the High Court and before the Supreme Court, but without any effect. He even admitted that sons of Rehmatullah were in possession of one-half of the suit land. On these circumstances, it was urged that according to the law of Muslim-Will the petitioners were entitled to 1/3rd of the suit land. 7. On the contrary, the learned counsel for the respondents, in reply, made the following submissions: (i) That the petitioners did claim their share in the suit land on the basis of Will before the Revenue Authorities, then before the Settlement Commissioner then before the High Court in Constitutional jurisdiction and then before the Supreme Court, but in vain. On these facts it was suggested that the issue relating to Will was constructively in issue before the High Court as well as the Supreme Court and so, was decided by implication against the petitioners. In view of the decision of the High Court and the Supreme Court, according to the learned counsel, the suit filed by the petitioners was barred by the principle of res judicata. Reliance was placed on Muhammad Yaqub 7. Chief Settlement Commissioner (PLD 1965 SC 254), Muhammad Shafi v. Muhammad Bakhsh (PLD 1971 Lah. 148), Abdul Majid v. Abdul Ghafoor Khan (PLD 1982 SC 146) and Asif Jan Siddiqi v. Government of Sindh (PLD 1983 SC 46). (ii) Without conceding that the Deed of Will was executed by Nabi Bakhsh, it was submitted that it related to the land abandoned by Nabi Bakhsh in India and this did not relate to the suit land. On this ground it was maintained that the Will was invalid, null and void and so was incapable of enforcement. Reliance was placed on Mirza Anwar Beg v. Mirza Ulfat Beg (PLD 1960 Lah. 265), S. Abdur Rashid v. Pakistan (PLD 1962 SC 42), Zafar Yab Ali v. Additional Rehabilitation and Settlement Commissioner (PLD 1968 Lah. 68), Akbar v. Sadiq (1972 SCMR 23) and Muhanunad Tufail v. Atta Shabbir (PLD 1977 SC 220). 8. From the foregoing narration of the facts, circumstances of the case and the rival contentions of the parties, the only two issues namely Issues Nos.2 and 5 emerge for adjudication. Issue No,2 is
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built upon the plea of res judicata, raised by respondents. Their case, in brief, is that the question of Will was considered and finally decided by the High Court in Writ Petition No,806/66 on 24-9-1975 and Supreme Court affirmed that decision on 21-6-1987 while disposing of C.A. No,157/81; that the above decision barred the suit filed by the petitioners. The case of the petitioners on the other hand, is that this question was neither directly nor constructively in issue before the High Court in the above-noted proceedings and so it was not decided within the terms of section 11 explanation (iv) of the Code of Civil Procedure. There is an agreement between the parties that principles of general res judicata are applicable to suit wherein there is some decision rendered in Constitutional jurisdiction of High Court. The question, for consideration, is whether the claim of petitioners based upon Will was actually or constructively in issue before the High Court in Writ Petition No,806/66 and before the Supreme Court in C.A. No,157/81. The answer to this question lies in what is known as constructive res judicata as contained in explanation (iv) to section 11 of the Code of Civil Procedure, which is as follows:-- "Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit." 9. From the bare reading of this explanation, it becomes clear that this explanation means and ordains that parties to a suit/lis are required under the law to raise before the Court all grounds of their attack and defence which are available to them and must not reserve any ground for a subsequent suit as the piecemeal litigation shall tantamount to the destruction of principle of finality of litigation. This will also defeat the very object of principle of res judicata that the parties should not be allowed to remain in litigious circle endlessly. This doctrine was beautifully propounded in case of Dutchess of Kingstone (L.C. 801-8th Ed.). It will be highly worthwhile to reproduce that classic exposition: "From the variety of cases relative to judgments being given in evidence in civil suits. These two deductions seem to follow as generally true: first that judgment of a Court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence conclusive, between the same parties, upon the same matter, directly in question in another Court; secondly that the judgment of a Court of exclusive jurisdiction, directly on the point, is in like manner, conclusive upon the same matter between the same parties, coming incidentally in question in another Court, for a different purpose. But neither the judgment of a Court of concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment." 10. This principle came up for examination in number of cases before superior judiciary which are not necessary to be noted. However, I will note , some cases which are of decisive bearing on this case: ' In Kandunni v. Katimma (9 M.251; 3 Ind. Dec. (N.S.) 572) plaintiff and on a demise if 1856 which he failed to prove. A later suit based on a demise of 1835 was held to be not barred. In Girdhar Monardas v. Dayabhai Kalabhai (8 B. 174; 4 Ind. Dec. (N.S.) 489 (F.B.) plaintiffs sued to eject defendants, relying on certain lessee and failed, it being held that the lessee were not proved. A subsequent suit to eject defendants from their tenancy based merely on plaintiffs' ownership was held not to be barred. It was held that the several grounds in the two cases were not so connected as properly to admit of investigation and adjudication together. Zamorin of Calicut v. Narayanan Mussad (22 M. 323; 8 Ind. Dec. (N.S.) 230), is a case similar to Girdhar Manordas v. Dayabhai Kalabhai (8 B 174; 4 Ind. Dec. (N.V.) 489 (F.B.) In Tharikaikot Madathil Baman v. Thiruthiyil Krishmen Nair (29 M. 153; 16 MLJ 48 (F.B.) plaintiff sued on an alleged mortgage and failed. A later suit based on another mortgage in respect of the same property was held to be not barred. In Khater Mistri v. Sadruddi Khan (34 C. 922) plaintiff sued to eject a tenant but failed, the defendant denying the
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tenancy and plaintiff failing to prove it. A later suit to eject defendant as a trespasser was held to be not barred. In Kura v. Madho (31 Ind. Cases 159; 68 P.R. 1915; 151 PWR 1915) plaintiffs sued as vendees but failed, being met with a sale-deed older than their own. A later suit by plaintiffs as reversioners for a declaration that the defendants' sale deed was not binding on them for want of consideration and necessity was held to be not barred. It was held that the question whether the earlier deed was invalid as against plaintiffs as reversioners was outside the scope of the first suit has laid, and that the importation of it into that suit would have made the suit one of a different nature and probably multifarious. 11. The principle of constructive res judicata came up for consideration before Division Bench of Lahore High Court in Parshotam v. Balwant (AIR 1929 Lah. 872). Dealing this question, Sir Shadi Lal, the then Chief Justice of Lahore High Court said:- "It will be observed that the doctrine of constructive res judicata, which finds expression in this explanation not only declares, that a matter which might and ought to have been made a ground of attack or defence shall be deemed to have been a matter directly and substantially in issue, but also implies that the matter shall be deemed to have been decided against the party who omitted to raise it. In other words, the result of the omission is that there would be not only a constructive issue in the suit, but also a constructive decision on that issue, against the party failing to set it up. ' It is, however, obvious that the former suit was based upon the allegation of possession and dispossession in respect of a specified plot of land, of which the plaintiff claimed to be the owner; and it is conceded that the land revenue assessed on that land was Rs,16 while according to the custom relied upon by him, he could get a plot of land corresponding to only Rs,14 in land revenue. The cause of action in the present suit is wholly different from that in the former suit, but that fact alone does not take the case out of the purview of the doctrine of res judicata. In the former suit the plaintiff could, in the alternative ask the Court to fix maintenance and to give him maintenance in terms of landed property. The claim now put forward might have been made a ground of attack in the previous suit, but the question is whether it ought to have been made a ground of attack. My answer to this question is in the negative. The only right claimed in the former suit was the recovery of certain land from a trespasser, and I do not think that it was necessary for a complete and final determination of that right that the plaintiff should have asked the Court to adjudicate upon his right to maintenance and to allot to him a plot equivalent to Rs,14 in land revenue. ' The learned counsel for the parties have invited our attention to several decided cases, but a perusal of the reports shows that those cases proceeded upon their own peculiar facts and afford little or no guidance in the determination of the question before us. As observed by their Lordships of the Privy Council in Kameswa r Parshad v. Rajkumari Rattan Koer (1893) 20 Cal. 79=19 I.A. 234= 6 Sar. 241 (P.C.) the question whether any matter ought to have been made a ground' of attack or defence in a previous suit must depend upon the facts of each case. ' The judgment in Mahomed Ibrahim v. Sheikh Hamja (1911) 35 Born. 507=12 I.C. 387=13 Bom. I.R. 895 has, however, a bearing upon the present case. In that case the plaintiff, claiming to be the mortgagor of certain land, sued the defendant for redemption. The plaintiff failed to prove the mortgage and the suit was dismissed. He then sued the defendant for possession of the same land, claiming to be the owner thereof. It was held that the second suit was not barred by the rule of res judicata. To the same category belongs the case of res judicata. To the same category belongs the case of a person who after the dismissal of his first suit for certain land on an alleged lease brings a second suit fo: the recovery of the same land on the strength of his general title. It has been repeatedly held that the second suit is not barred as res judicata: vide inter alia Zamorin of Calicut v. Narayan Mussad (1899) 22 Mad. 323 and Kutti Ali v. Chindan etc. (1990) 23 Mad. 629."
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12. The ratio, underlying the aforegoing discussion, is that the parties to the suit are required to take all the pleas in attack or defence which are available to them and which ought to have been taken. If the party does not take such plea, it is debarred from raising such plea in a subsequent litigation. This is known as principle of constructive res judicata. However, this principle is subject to certain well-settled exceptions that a party to litigation is not bound to raise any plea which is neither relevant nor has any similarity with the cause of action; that if the plea is inconsistent with other pleas, it is not required to raise in a suit by way of attack or by way of defence. The question as to whether the plea falls within the ambit of constructive res judicata depends upon the peculiar facts and circumstances of each case. Applying these principles to the facts and circumstances of the case in hand, it is clear to me that in Writ Petition No,806/66, the only question falling for examination was whether the instructions embodied in Memo. No,4953-54/3917 dated 14-4-1954 were valid and applicable to inheritance of Nabi Bakhsh, who had filed the claim but had not secured the allotment of the suit land before his demise. The High Court held that the above-noted circular was a valid one and was not applicable to inheritance of Nabi Bakhsh. This construction of the above circular was affirmed by the Supreme Court in C.A. No,157/81 in its decision…
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